A defendant's cocaine convictions were reversed where he clearly and unequivocally said
that he would represent himself, the trial court told him to execute a waiver, and the judge never
proceeded with the statutorily required waiver. The inquiry described in N.C.G.S. § 15A-1242 is
mandatory in every case where the defendant requests to proceed pro se.
Judge TIMMONS-GOODSON concurring in the result.
Attorney General Roy Cooper, by Assistant Attorney General
Tammera S. Hill, for the State.
Leslie C. Rawls, for defendant-appellant.
CALABRIA, Judge.
Defendant was charged with conspiracy to sell cocaine, sale of
cocaine, delivery of cocaine, and possession with intent to sell or
deliver cocaine. Prior to trial, defendant sent his appointed
counsel a letter asking that new counsel be appointed in his case.
On 23 May 2002, a hearing was held before Judge Richard D. Boner on
defendant's request.
Defendant and the trial court then engaged in
the following colloquy:
THE STATE: Your Honor, this is the defendant's
motion to consider counsel.
. . .
THE COURT: He doesn't have a lawyer?
[DEFENSE COUNSEL]: I'm his appointed attorney
right now. I have communicated with him about
his case by letter. He sent a letter back to
me stating he would like new counsel
appointed. THE COURT: Have you got the money to hire one?
[DEFENDANT]: No; I don't. I'm currently in
DOC.
THE COURT: All right. You have got two
choices; represent yourself or keep this
lawyer. Which one do you want? That's your
two choices.
[DEFENDANT]: I'm not allowed to -- if I'm not
satisfied with the attorney's representation -
- I'm saying --
THE COURT: Well, I'm just telling you if
you're not satisfied then you can represent
yourself or hire a lawyer. It doesn't work
this way; you don't pick and choose your
lawyers in here when they are court appointed.
[DEFENDANT]: I understand that, Your Honor,
but if I'm not satisfied with the attorney --
THE COURT: You better get satisfied or
represent yourself. That's as simple as I can
make it. I'm not going to play musical
lawyers. If you don't like the representation
then hire your own lawyer or represent
yourself.
[DEFENDANT]: I'll represent myself then.
THE COURT: All right. Step up here and
execute a waiver.
Defendant complied and indicated he would “get an attorney.” The
trial court had defendant sworn and took his pleas of not guilty
for the offenses charged. At the conclusion of the hearing, the
trial court entered a note in defendant's file indicating that
defendant asked for substitute counsel and that request had been
denied.
Defendant appeared for trial on 9 September 2002. Defendant
renewed his request that substitute counsel be appointed to
represent him. The trial court denied defendant's request after
reviewing the note in the file indicating the trial court had
advised defendant that new counsel would not be appointed if
defendant dismissed his appointed counsel and signed a waiver of
counsel. Defendant was convicted of conspiracy to sell cocaine,
possession with intent to sell or deliver cocaine, sale of cocaine
and delivery of cocaine. Defendant was sentenced to a term of
twenty-four to twenty-nine months in the North Carolina Department
of Correction for the sale of cocaine conviction, and a consecutive
term of another twenty-four to twenty-nine months
for the
conspiracy and possession convictions. The trial court arrested
judgment on the remaining charge of delivery of cocaine.
Defendant
appeals.
On appeal, defendant asserts the trial court erred (I) by
denying defendant's request for appointment of substitute counsel
without allowing him to present evidence or argument on his request
and (II) by failing to intervene on its own initiative to stop and
strike certain comments directed towards defendant by a witness on
cross-examination.
Defendant did not assign error to the trial court's failure to
conduct further inquiry under N.C. Gen. Stat. § 15A-1242 (2003);
therefore, under our rules of appellate procedure, this argument
has been abandoned. N.C.R. App. P. 28(b)(6) (2004). However, we
suspend the application of Rule 28(b)(6) pursuant to our discretion
under N.C.R. App. P. 2 (2004).
North Carolina General Statutes § 15A-1242 provides as
follows:
A defendant may be permitted at his election
to proceed in the trial of his case without
the assistance of counsel only after the trial
judge makes thorough inquiry and is satisfied
that the defendant:
(1) Has been clearly advised of his right to
the assistance of counsel, including his rightto the assignment of counsel when he is so
entitled;
(2) Understands and appreciates the
consequences of this decision; and
(3) Comprehends the nature of the charges and
proceedings and the range of permissible
punishments.
“The inquiry described in G.S. § 15A-1242 is mandatory in every
case where the defendant requests to proceed pro se.” State v.
White, 78 N.C. App. 741, 746, 338 S.E.2d 614, 616 (1986).
In the instant case, defendant clearly and unequivocally
stated he would represent himself.
(See footnote 1)
Thereafter, the trial court
instructed him to execute a waiver but failed to proceed with the
inquiry required under N.C. Gen. Stat. § 15A-1242. “A written
waiver of counsel is no substitute for actual compliance by the
trial court with G.S. § 15A-1242.” State v. Wells, 78 N.C. App.
769, 773, 338 S.E.2d 573, 575 (1986). “We conclude that in the
absence of . . . the inquiry required by G.S. § 15A-1242, it was
error to permit defendant to go to trial without the assistance of
counsel.” White, 78 N.C. App. at 746, 338 S.E.2d at 617.
Because of our disposition of this issue, we need not address
defendant's remaining arguments on appeal.
Accordingly, we reverse
and remand.
Reversed and remanded. Judge ELMORE concurs.
Judge TIMMONS-GOODSON concurs in the result with a separate
opinion.
TIMMONS-GOODSON, Judge, concurring in the result.
I agree with the majority's conclusion that the trial court
erred in its treatment of defendant's request for the appointment
of substitute counsel. However, I believe that a pro se inquiry
analysis is not appropriate because defendant's repeated request
was not that the trial court allow him to proceed pro se, but that
the trial court appoint substitute counsel.
Defendant agreed to represent himself pro se only after the
trial court denied his request for substitute counsel. Yet,
defendant renewed his request for substitute counsel at the
commencement of trial, which demonstrated his desire to be
represented by counsel. Therefore, I believe that defendant's
repeated request that the trial court appoint substitute counsel
should be the focus of this Court's analysis.
Defendant asserts that the court failed to determine if any
conflict of interest or other facts existed that would have
justified or required appointing new counsel. I agree.
Our Supreme Court has stated:
While it is a fundamental principle that an
indigent defendant in a serious criminal
prosecution must have counsel appointed to
represent him, an indigent defendant does not
have the right to have counsel of his choice
appointed to represent him. This does not
mean, however, that a defendant is never
entitled to have new or substitute counsel
appointed. A trial court is constitutionally
required to appoint substitute counsel
whenever representation by counsel originallyappointed would amount to denial of
defendant's right to effective assistance of
counsel, that is, when the initial appointment
has not afforded defendant his constitutional
right to counsel. Thus, when it appears to
the trial court that the original counsel is
reasonably competent to present defendant's
case and the nature of the conflict between
defendant and counsel is not such as would
render counsel incompetent or ineffective to
represent that defendant, denial of
defendant's request to appoint substitute
counsel is entirely proper.
State v. Thacker, 301 N.C. 348, 351-52, 271 S.E.2d 252, 255 (1980)
(citations omitted). In the case sub judice, the trial court made
no inquiry whatsoever regarding defendant's request that substitute
counsel be appointed to represent him, and that he could either
keep his current counsel or represent himself at trial. The court
afforded defendant no opportunity to explain why substitute counsel
should be appointed. Thus, the trial court failed to determine
whether there was a conflict of interest or other grounds upon
which continued representation by his appointed counsel would deny
defendant his constitutional right to counsel. Id. Therefore, I
conclude that the trial court erred in its treatment of defendant's
request for the appointment of substitute counsel.
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